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  • Steve Sheldon, Judge (Ret)

Bogging Down the Mediation When Account Numbers or Amounts Don't Match ! !

Anyone who has participated in a mediation that involves bank accounts, retirement or other types of financial accounts has probably had the wheels come off when one side has no account numbers related to accounts, the balances don't match or the date of the balances is undetermined, i.e. one side has "date of service," the other side hasn't identified the date of the balance, etc, etc. If you've been involved in such a mediation, you've probably also experienced at least "frustration" if not a lot stronger emotions ! !

In addition to the emotional energy spent (by you and your client) when this kind of issue pops up, you're probably also very aware (or, you can be sure your client is) that "the meter is running" and the cost of the mediation is increasing by the minute while everyone tries to unravel the disagreements. I've seen attorneys become quite frustrated when this happens and it is important that the mediator guide the conversation into a constructive, problem solving mode and re-direct the understandable anger and frustration that can derail productive conversations and solution-driven dialogues betweeen the parties--seek compromise and "agreements for mediation/solution."

I've thought that it may be helpful to suggest to litigants who are mediating issues which include the above type of assets to consider, as part of their Rule 408 memo, to work together to come up with a list of accounts with numbers and balances prior to the mediation. The "list" could then be provided to the Mediator in order to give the Mediator even more information to help them get the case resolved (Rule 408 would, of course, preclude the use of the "list" later, i.e. ". . .either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction. . . ."(a).)

So, what would such a "list" look like? Well, I'm glad you asked, hopefully you will find something like the example below helpful.

An introductory paragraph could be added to the "list" to ensure that both sides (and the Mediator) were aware it was ONLY being provided to assist in resolving the case and that, otherwise, each side was preserving their right under Rule 408 to present different evidence if the case was not resolved and went to trial:

Acct information for Mediation
Download PDF • 124KB

Acct information for Mediation
Download DOCX • 16KB

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